It's a Virus, Not a Crime!

Criminalizing HIV Nondisclosure: Effective HIV-Prevention Method or Fanning the Flames of the Pandemic?

By Bob Frascino, M.D.

October 31, 2010

In my last blog entry, "A Telling Tale of Trick or Treat," I mentioned a gaggle of horned-up hotties in a Jacuzzi who might very well wind up exchanging bodily fluids prior to exchanging detailed medical information, such as HIV status. I discussed some of the reasons disclosure is such a thorny issue: rejection, stigma, possible dissemination of confidential information, etc. So what could happen to those hotties if they chose not to disclose -- or to delay disclosure until mutual trust was established with a partner?

Well, that would depend on what state or country the hot hot tub of hotties was located. In Iowa, an HIVer who had an undetectable viral load was sentenced to 25 years in prison following a one-time sexual encounter during which he used a condom! WOWZA! An HIV-positive woman in Georgia was given eight years for failing to disclose her viral status even though her HIV status had been published on the front page of the local newspaper (how's that for disclosure?!) and two witnesses testified her sexual partner was well aware of her HIV-positive status.

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Please note these prosecutions are not for HIV transmission, but rather for failure to disclose one's HIV-positive status prior to intimate contact between consenting adults who both agreed to do the unsafe dance with no pants.

Making matters even worse, criminalization of HIV has now expanded beyond the boudoir (whoa! did I really say boudoir?) into far distant realms. For example, an HIV-positive guy in Texas is now serving 35 years for spitting at a police officer, and a positively charged Michigan man was charged under that state's anti-terrorism statute with possession of a "biological weapon" following an altercation with a neighbor! So HIV is now linked to bioterrorism in the eyes of Lady Justice? OMG!

As the number of these cases grows, so does the debate surrounding the criminalization of HIV. The debate lines are clearly drawn and delineated as follows:

Without forced disclosure, more and more people will be infected with HIV; in essence, the public health would be jeopardized.

Why Should HIV Nondisclosure Laws Be Overturned?

HIV criminalization laws do nothing to reduce the rate of new HIV infections.

Such laws undermine HIV-prevention efforts by deterring people from being tested. ("Hey, if I don't get tested and don't know my status, I can't be charged or prosecuted.")

They increase fear and stigma surrounding HIVers.

They result in punishment (often severe) under circumstances that are not blameworthy and where no harm (and in some cases even potential harm) was done.

Such laws are often applied unfairly and at best inconsistently.

There are laws already on the books that can be used to prosecute the extremely rare cases where someone transmits HIV with the intent to do harm.

Despite the visceral response and what, at first glance, may seem like a reasonable concept to force HIV disclosure with nondisclosure laws, on more careful reflection it becomes evident that the criminal law is an ineffective and inappropriate tool with which to address the problem of HIV exposure. There is no evidence to support that criminal prosecutions for HIV nondisclosure offer any benefit in terms of HIV prevention. On the other hand, it is clear these actions have negative effects, including disincentivizing HIV testing and knowing one's status; spreading misinformation about HIV-transmission risk (the Texas guy in jail for 35 years for spitting at a cop is a good example); increased discrimination against HIVers; and invasion of privacy.

Studies have shown that the vast majority of HIVers practice safer sex and/or disclose their HIV status to sexual partners. It is also an important public health priority for everyone to take personal responsibility, whether they know their HIV status or not, to ensure that HIV and other STDs are not transmitted. Criminalization places the responsibility for preventing HIV transmission disproportionately on HIVers.

HIV nondisclosure criminalization cases often attract sensational media coverage. (The case of Nadja Benaissa, an HIV-positive German pop star who recently barely escaped a prison sentence for nondisclosure, is an example.) Portraying of HIVers as potential criminals results in increased stigmatization. Perhaps even more important is that given the lack of awareness of -- and in some cases frank bias against -- HIV/AIDS, HIV transmission and HIVers among some police, prosecutors, judges and correctional institutions, the criminal justice system is not the appropriate venue for addressing HIV-exposure issues. HIV/AIDS is an individual- and a public-health issue. There are public-health mechanisms in place to address communicable diseases. Interventions aimed at preventing the spread of HIV should be public-health and human-rights based. Strengthening policies and initiatives that have been proven to reduce HIV transmission, such as increasing HIV/AIDS awareness and education programs, encouraging testing, increasing access to support services and safer sex/harm-reduction materials, and providing clean needle exchange programs, should be the public-health focus. Criminal charges do nothing to stem the spread of HIV, but do divert resources and public attention away from these proven public-health policies and programs.

Utilizing criminal law to prevent HIV transmission is based on faulty assumptions about the efficacy of this approach and does not address the many complex factors associated with unsafe behaviors and HIV disclosure. It undercuts the most basic HIV-prevention message: to know your HIV status and take responsibility for your own sexual choices and health. Studies have shown that getting HIV tested and learning one's HIV status leads to increased adherence to safer sex techniques. Criminalization of HIV nondisclosure is counterproductive in containing the further spread of HIV, particularly because it markedly decreases willingness to access testing and learn one's HIV status.

The concept we must always remember is a simple one: HIV is a virus, not a crime!

Want to get in touch with Dr. Bob? You can reach him through his "Ask the Experts" forum, by sending a message to the Robert James Frascino AIDS Foundation, or by leaving a comment for him below. (If it's a private message, or if it includes personal info such as your e-mail address or phone number, we won't post the comment, but we will send it along to him.)

Yes, the possibility of rejection would exist. I have the right to reject sex with you based upon that information, and I have the right to get the information before taking the risk.

If an HIV-positive person wishes to "protect their right to privacy" by not disclosing their status, their option is to refrain from having any sexual partners. Otherwise, the potential partner has every right to full disclosure on the risk they're taking.

Comment by: ChuckFromAL
(Montgomery, AL)
Thu., Jul. 7, 2011 at 11:41 am EDT
Did you ever stop to think these laws may be intended to prevent people from getting tested? If less people get tested then less people get treated so the state has lower health care costs. Maybe some people believe that the majority of people who will get HIV are gays and minorities and they want them to get it. Just saying....

Comment by: Rudolph W.
(San Antonio)
Mon., Jul. 4, 2011 at 3:17 am EDT
Although it is true that AIDS in and of itself should not be a crime, failing to control it is, and should be.
Typhoid Mary gave us an example of what can go wrong.
Like typhoid Mary, who returned to infect others again and again, there are carriers who will distribute this (HIV) with no regards to the public safety while others act in a responsible manner.
Thus there is a need to protect society while being responsible to the needs of the individuals, no simple answers lie ahead.

Comment by: alex
(south carolina)
Sat., Jul. 2, 2011 at 3:15 am EDT
I am sorry if this offends anyone. If you have someone in your car and you choose to drive in a way that takes their life it can be considered vehicular homicide. should that law be repealed as well? I was married for 9 years , by your arguement of its your responsiblity to use a condom you are saying not to trust your spouse. I personally feel like it is "your" responsiblity to tell the other person they are playing russian roulette. By the arguement its my right not to disclose you are pretty much saying its ok if I put this gun to your head and pull the trigger. It is not discrimination when the information withheld can contain a death sentence. Saying you should have used protection is like saying, I didn't know what chamber the round was in. It is a crime because you are subjecting someone who trusts you to a deadly diasease for which there is no cure. Take your head out of your ass and think of what it would do to that persons life. If you hit someone with your car should you be required to cover their medical bills? Its the same thing. You are in fact taking their life. I can't wrap my mind around how someone could think it should not be morally and lawfully wrong. To argue its their fault they trusted me...REALLY? Even to say I'm being discriminated against because I didn't tell someone something that could kill them is wrong. It should be a death sentence, after all isn't that what you gave them in order t get laid? Face facts and look at it from your so called victems point of view. Also look up victem in a dictunary you may be amazed to learn what it means. If having something opposed on you by someone else that will eventualy kill you doesent make you a victem than what does? An yes by not disclosing the fact you have in truth taken a life. The life will never be the same and now this person will face what yu are facing because you think its your right to do to them wat was done to you. In the words of forrest gump, an that's all I have to say about that

Comment by: jager
(Tx)
Fri., Jul. 1, 2011 at 10:22 pm EDT
If someone does not disclose their HIV status prior to sex out of fear of rejection then they should not be having sex, the other person had a right to make an informed choice & reject you (same for all other STD's too). Why would someone knowingly expose another human to a virus that could kill them? How did they feel when someone else may have done the same?

Oh yes it "takes two to tango." WTF? I bet they wouldn't do the dance if they had the knowledge. Someone who does not disclose their HIV status is depriving the other person of being able to make an educated decision on if they want to participate in that activity with the infected person. You have your right to your privicy? No you do not if you are risking harming the other person. Condoms are not 100%.

I would expect anyone with any STD to give the other person a chance to make a choice. As adults we need full disclosure, & yes anything else is just selfish & criminal

Comment by: Kevin
(Houston, Tx)
Tue., Jun. 28, 2011 at 5:47 pm EDT
A fundamental aspect to the concept of "personal rights" is that an individuals rights end at the point where they infringe on the rights of another.
*No one* has the "right" to place another person at risk of bodily harm without their consent.
That this would even be an issue is greatly disturbing and reflects a sociopathic level of self-centeredness that is both insane and criminal. (they would be- by definition- " a danger to others")

Comment by: bartlebyTue., Jun. 28, 2011 at 6:00 pm EDTno one has the right to harm others is an easy argument to make. but that does not override a person's right to privacy as you are trying to argue. it also doesn't excuse those who are negative from protecting themselves and using protection.

we agree that exposing others to HIV is wrong. it's the punishments we don't agree on. i don't think it's fair to equate exposure (NOT infection) to murder. especially when both parties engaged in the act. we all take a risk whenever we engage in unprotected sex. HIV is not the only STD that's out there. solely blaming those living with HIV does not solve the problem. it only adds to stigma.

Comment by: Kevin
(Houston, Tx)
Tue., Jun. 28, 2011 at 6:35 pm EDTSo your argument is that your "right to privacy" is somehow "more important" than another persons right not to be knowingly exposed to a potentially life threatening disease by someone too selfish to tell them the truth?
It's this type of deranged self-entitled mentality that's *why* these laws exist!
If you can't bring yourself to tell your potential sexual partner(s) the truth, then just stay celibate. (once again, it comes back to the very textbook definition of being "a danger to others"!)

Comment by: bartlebyWed., Jun. 29, 2011 at 1:36 pm EDTno, i never even said "more important." why are you quoting that?
i said not harming others "does not override a person's right to privacy." not doing harm to others and right to privacy are both important. i don't think either one takes precedent over the other.

but my point was that it's not entirely the positive person's fault. and the punishments are unjust. there are so many factors to consider when it comes to these laws. it's not as clear cut as punish those who don't disclose before sex. you also have to take into account HIV stigma, which is why people are afraid to disclose, in general, let alone before sex. and then you have to wonder why despite all the prevention campaigns and education out there, people continue to have unprotected sex, knowing the risks, and then cry that they are the victim. it's not right.

yes, there are some bad eggs, but these HIV criminalization cases are rarely people who feel entitled or selfish or who don't care about protecting others. i'm fighting for the people who live with HIV in fear of being persecuted by folks like you. and for HIV-negative folks, you know the risks! protect yourself before you expect others to protect you.

Comment by: Mike
(Atlanta, GA)
Sun., Jul. 24, 2011 at 11:17 am EDTI would not call exposure murder (unless it ended up in infection). I would call it reckless endangerment of another individual. Argue that it isn't.

Comment by: Dave
(Amherst, NY)
Tue., Jun. 28, 2011 at 5:33 pm EDT
People with HIV should not be having sex except with other people that have HIV or the terminally ill. Why we live in this farce of a society that allows diseases like this to spread unchecked is beyond me.

Comment by: bartlebyTue., Jun. 28, 2011 at 5:53 pm EDTseriously? that's discrimination. you cannot deny people their freedom to have sex, HIV positive or not, so long as it's consensual. whether you choose to use protection is up to BOTH partners.

HIV is not allowed to spread unchecked. there are many, many legitimate and powerful prevention/awareness campaigns. for example, yesterday was HIV testing day. did you get tested? do you listen to these messages about prevention? how about your friends? do they know their status? do you? are they using protection when they have sex? do you tell others to get tested and use protection? because if you and your friends are not, then it's you that are letting the virus spread unchecked. not "society."

Comment by: Rick S
(Walla walla, wa)
Sat., Jun. 25, 2011 at 6:41 pm EDT
I guess the author of this piece has unprotected sex with multiple partners. Good luck with that one!

Comment by: bartlebyMon., Jun. 27, 2011 at 1:34 pm EDTactually, dr. bob has been in a long-term relationship for a while now. but his personal life doesn't add or detract from what he's saying, HIV nondisclosure laws are unjust and don't take into account all the other complicated factors that dr. bob has laid out for you.

Comment by: John M.
(Mass.)
Mon., Jun. 13, 2011 at 8:49 am EDT
Disclosure of HIV stutus should be mandatory. I am HIV positive and tell anyone who needs to know that I am infected. Those people include dentists, hygenitists,doctors, nurses, technicians, phlebotimists and anyone who may come in contact with my blood or semen. Not doing so should be a crime. I have an STD and am resposible for not infecting anyone else. Someone with HIV who has sex without disclosure should go to jail. HIVers need to be resposible citizens. My biggest fear is infecting another person. Disclosure is simply the right thing to do.

Comment by: Mike
(Atlanta, GA)
Thu., Jun. 2, 2011 at 6:30 pm EDT
You're kidding right? Not disclosing HIV status prior to sexual contact should be a crime. Not using protection is a risk, yes, but knowingly putting someone at risk is more than just selfish, it's gross negligence. You are correct, HIV is a virus, not a crime. The crime is putting someone at serious risk when all it takes is a conversation and some disclosure.

Comment by: Ituri
(wyld_ferret@hotmail.com)
Wed., Jun. 1, 2011 at 7:37 pm EDT
I'm sorry, but this is WAY off base. Is there discrimination? Yes, can't contest that. But many of those HIV positive people who have been prosecuted DID in fact use their status as a weapon.

Several men have been imprisoned for TRYING to infect as many women as they can, out of some slight a previous woman did to them. One of the men you mentioned spit on a cop, did he? Do YOU make a habit of spitting on cops? Would you SUGGEST doing so in any circumstances, with infection risk or not?

As for the one-night encounters, throwing them off as if they were nothing is no better than throwing off a condom as if you expect not to get pregnant, then wondering "why am I pregnant?" Wearing a condom does NOT always protect the other person, and they have the RIGHT to know the risk they are taking when doing the horizontal tango. Being "consensual" is great, but when information is WITHHELD, it can still constitute a crime. ANYONE with a disease should understand this, not just HIV persons. If you had something as innocuous as HPV, a woman with a history of cancer in her family will still want to know beforehand.

I realize being HIV positive must be incredibly difficult, but that is no excuse to claim you can ignore the reality, that you CAN transmit it to unsuspecting people by swapping fluids. I'm sorry you're infected, and I know it may not have been through any wrong-doing of your own, but you do not get to ignore that risk and deprive your future partners the choice to partake in that risk as well.

The proper time to tell them is before the relationship advances. Its a simple answer that varies for every couple, and every couple faces their challenges. This will be yours, if you are infected, but you have to accept that as a fact of life. Your right to get laid does not trump your partners right to self-determination and risk bearing.

Comment by: Dan A.
(Seattle)
Tue., May. 31, 2011 at 7:09 pm EDT
If someone knows he or she has HIV/AIDS and does not disclose it to a sexual partner, that should be a crime. Period. As to charging people who have not seroconverted or otherwise do not know they are infected, and with people who do not have intimate contact (e.g. the person who spat at a cop), it sounds to me like a combo of poor defense counsel and ignorant courts and juries. But, that does not mean knowing exposure should not be a criminal act. After all, HIV/AIDS is almost always fatal, even with HAART. How is pointing a gun in someone's direction and firing it any different? Sure you might miss, but you could just as easily hit them and kill them.

Comment by: bartlebyMon., Jun. 27, 2011 at 5:04 pm EDTtransmitting HIV is not the same as murder. last time I checked, people had a right to their privacy and lying was not a crime. i agree that knowingly engaging in unprotected sex when you know you're positive is wrong, but it takes two to tango. people always want to play the victim even though they put themselves at risk by having unprotected sex. the same "personal responsibility" argument you guys use for criminalization can be turned around on the "victim" who wasn't responsible for himself.

let's not even mention all the people who are oblivious to HIV and don't get tested and don't even know they have HIV. bottom line, be safe, use protection whenever you engage in sex. not everybody knows their status and not everybody tells the truth. it's firstly your responsibility to protect yourself. not somebody else's. HIV criminalization won't make people safer and it won't curb infections. if anything, it will make people more lax about HIV and undermine all our prevention efforts.

Comment by: Dan A.
(Seattle)
Thu., Jul. 28, 2011 at 8:31 pm EDTThat is apologism at its best. If a person knows he has AIDS and does not inform his partner, then the partner cannot even make an informed decision about whether to have sex in the first place, much less whether to use protection. Failure to disclose is criminal and if there is transmission it should be treated as 2nd degree murder.

Comment by: johnny doe
(buffalo, ny)
Sun., May. 22, 2011 at 12:58 am EDT
this guy is trying to say that disclosure is a bad idea or forced to say something is a bad idea and i think your nutz, forced to tell somebody that you have a deadly deasese is a great thing because we live in a society that are liars to the max and you better belive i wanna know and jail is the very best idea that can happen if your a liar just wanting to get you some and don't care what happens to others. send them to jail all of them liars as they deserve.

Comment by: Diego
(Sacramento, CA)
Sun., May. 8, 2011 at 9:07 pm EDT
While the arguments for criminalizing non-disclousure make perfect sense, your arguments in favor of overturning these laws are fraught with contradictions. For example you say: "such laws are often applied unfairly and at best inconsistently". Looking back with 20/20 vision, most, if not all, laws are often applied unfairly and inconsistently. Should we do away with the criminal justice system? There is no perfect system and the intent (spirit of the law)is valid regardless of how imperfect people apply it. What you fail to see is what is at the bottom of the anti-gay feelings of most ordinary people . That is, how abhorrent the aberrant behavior of gay people using the "sewer disposal system" for their sexual gratification. By the way, I think that is equally disgusting of heterosexual couples also.

Comment by: Joseph W
(Winchester, KY)
Sun., Apr. 24, 2011 at 2:48 pm EDT
I'd have to disagree. Anything that can be used to harm another person whether with intent or without it should be considered dangerous. It should be considered a crime to act with negligence with regards to it.

Non-disclosure should definitely be punished in the manner in which you've described although the woman getting 8 years in your particular example seems more like a case of a bad defense attorney. As for getting a higher sentence from crimes relating to instances of potential exposure to those others involved in said incidents I again find that they are in fact responsible for their actions much like if you were holding a chainsaw in your hands during a fist fight you'd be responsible for chopping someone down.

This isn't the cold or the flu were talking about here so don't try to treat it as such. People need to be more personally responsible which would be a first for many of them considering the majority of new HIV cases happen due to unprotected sex.

Comment by: Barbara S.
(Seattle, WA)
Mon., Apr. 4, 2011 at 2:06 pm EDT
If you work or want to work for the US Govt. and you disclose that you have Hep C you will be fired from fear, even when they have to make up the excuses. Hep C isn't transmittable except by blood and it scares all those people who control your life to lose their reason.

Comment by: peter b
(fleming island florida)
Thu., Nov. 18, 2010 at 5:38 pm EST
Dr Frascino:
I was your patient in 1994 and went through the syntex gancyclovir trial. i was newly diagnosed and mixed up and you were such a calming force in my world and then i heard you closed the practice etc and i never knew what happened to you. I was on the verge of tears when i saw your face and read about you and all your contributions. I am so glad i found you here. i was just going to add that putting HIV positive people in prison has the potential of exacerbating the already high transmission rates in those institutions.

Comment by: Mon., Nov. 15, 2010 at 5:00 am EST
the best thing to do before falling into relationship and having sex is for the two should get tested for STDs and always use condoms and get educated, not to sit and and wait for disclosure when there is a percentage of virally inhanced individual that are not aware of thier status

Comment by: David
(San Francisco, CA)
Thu., Nov. 11, 2010 at 2:24 pm EST
Great post CJ. I often feel the same way when people on the bus subject me to their various diseases, viruses, hate, and ignorance. All of these things impact my health negatively and put me at risk. Perhaps we should throw them in jail too. If you can't deal with the consequences of having sex perhaps you are not mature enough for it.

Comment by: Laurie
(Colorado)
Wed., Nov. 10, 2010 at 5:03 pm EST
Does an HIV positive person, need to disclose their HIV status if they are getting their eyebrows waxed tweezed or any other facial procedure?

Comment by: Ituri
(CA)
Wed., Jun. 1, 2011 at 7:52 pm EDTEyebrow waxing does not swap fluids. There is no disease you can pass to the technician by a brow wax.

The concept of a relationship and intimate relations is far different, as most people would understand with a little thought...

Comment by: CJ
(New York City)
Tue., Nov. 9, 2010 at 4:57 pm EST
Curious though at your position. What should be the general route when someone knows they are HIV positive, but do not disclose to a partner? I believe it's criminal. Why should I, or shouldn't I?

Thank you for your clear and well-argued post. We can not emphasize enough the reality that criminalizing nondisclosure does little to prevent HIV transmission. As a clinician in the field for twenty years, I concur that continued stigmatization of people living with HIV undermines prevention efforts. Messages of empowerment, like yours, do far more to help individuals care for themselves and their partners.
Dr. James
www.agingwithhiv.wordpress.com

Comment by: Sean Strub
(New York)
Sun., Oct. 31, 2010 at 12:52 pm EDT
Thanks for the attention to this important issue. It is important to note, however, that failing to disclose one's HIV status does not necessarily put a partner "in harm's way"; the degree of risk, if any, is dependent on a number of factors, depending on the activities in which the individuals engage, whether or not they practice safer sex, whether the partner with HIV is on treatment and does or does not have a detectable viral load, etc. I am involved with the Center for HIV Law and Policy's Positive Justice Project, to combat and repeal HIV specific laws. More information can be found at http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject

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Bob Frascino, M.D., was President and Founder of The Robert James Frascino AIDS Foundation. He had been an outspoken, popular expert in TheBody.com's "Ask the Experts" forums on safe sex and fatigue/anemia since 2000. Once a Fellow of the American Academy of Allergy, Asthma, and Immunology, and the American Academy of Pediatrics, Dr. Frascino served as Associate Clinical Professor of Medicine, Division of Immunology, Rheumatology, and Allergy, at Stanford University Medical Center from 1983 until 2001. He was a member of the American Academy of HIV Medicine and had also been a distinguished member of the executive boards of numerous state and regional associations.

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